§ 15-2.407-8 Protests against award.

(a) Protests before award. When a protest is received by the Contracting Officer, he will prepare a protest file and forward it, in duplicate, through procurement channels to the Director, Contracts Management Division, by the most expeditious

means and

marked "IMMEDIATE ACTIONPROTEST BEFORE AWARD." The protest file will include the following: (1) Statement of the Director of Contracting Operations containing recommendations (with supporting

reasons) as to the merits of the protest, addressing each allegation of the protest;

(2) Contracting Officer's statement of facts and circumstances including a discussion of the merits addressing each allegation of the protest;

(3) Contracting Officer's conclusions and recommendations including documentary evidence on which based;

(4) Copy of the Invitation for Bids (IFB) or Request for Proposal (RFP); (5) Copy of the abstract of bids or proposals;

(6) Copy of the bid or proposal of the offeror to whom the award is proposed to be made;

(7) Copy of the bid or proposal by the protester, if any;

(8) Current status of award;

(9) Copies of notice of protest given bidders and other persons, if any;

(10) Name and telephone number of the person in the procurement office who may be contacted for information relevant to the protest; and

(11) Technical evaluation report, if relevant.

(i) The file shall be assembled in an orderly manner including an overall index of enclosures which shall indicate the location in the file of each document.

(ii) Sufficient additional copies of the protest and supporting papers shall be provided to satisfy the requirements of paragraph (c) of this section.

(b) Protests after award. All formal protests after award will be processed, in duplicate, through procurement channels to the Director, Contracts Management Division, by the most expeditious means and marked "IMMEDIATE ACTION-PROTEST AFTER

(8) Current status of contract, indicating whether performance has commenced, shipment or delivery has been made, or stop-work order has been issued; and

(9) Copy of any mutual agreement with the contractor to suspend performance.

(i) Sufficient additional copies of the protest and supporting papers shall be provided to satisfy the requirements of paragraph (c) of this section.

(c) Protests lodged with General Accounting Office. (1) When a protest is lodged with the General Accounting Office (GAO), it is EPA policy to strictly observe the Interim Bid Protest Procedure and Standards promulgated by GAO (36 FR 24971 et seq., December 23, 1971; 4 CFR Part 20).

(2) Upon receipt of information that a protest has been lodged with GAO, the Contracting Officer shall promptly so notify the contractor and/or all bidders or proposers who, in the opinion of the Contracting Officer, appear to have a substantial and reasonable prospect of receiving an award if the protest is denied. Except to the extent that withholding of information is permitted or required by law, the Contracting Officer shall also furnish such parties copies, when received, of the original protest and of additional information filed by the protester in support of the protest.

(3) The protest file, supplemented as necessary by the Procurement and Contracts Management Division, shall be furnished as the administrative report required by GAO in bid protest cases. The report to GAO shall be routed to the Director, Procurement and Contracts Management Division, who will effect coordination with the Office of General Counsel. The letter transmitting the protest file to GAO will be signed by the Director, Procurement and Contracts Management

Division. Supplemental submissions will be made by the Director, Procurement and Contracts Management Division.

(4) At the time the report or any supplemental submission is furnished to GAO, a copy of it will be furnished by Contracts Management Division to each contractor, bidder or proposer who is entitled to receive notice of the bid protest under paragraph (c)(2) of this paragraph. Such parties shall be advised that any comments they care to make should be filed with the Office of General Counsel, GAO within 10 days after receipt, and shall be requested to furnish a copy of such comments to Director, Contracts Management Division.

(d) Protests lodged with other authorities. Where a protest is lodged with the Environmental Protection Agency, a Member of Congress, or the Small Business Administration (see § 1-1.703-2 of this title), the protest file will be processed, in duplicate, through procurement channels, to the Director, Contracts Management Division. The latter will direct such coordination and referrals as he deems appropriate. Sufficient additional copies of the protest and supporting papers shall be provided to satisfy the requirements of paragraph (c) of this section.

[37 FR 10726, May 27, 1972, as amended at 45 FR 46388, July 10, 1980]

(a) Debriefing of unsuccessful offerors.

(1) Purpose. This section provides Environmental Protection Agency (EPA) policy and procedures for debriefing unsuccessful offerors in competitive negotiated procurements.

(2) Policy. (i) The policy of the EPA is to provide a debriefing, when requested in writing, to an offeror that has unsuccessfully competed for an EPA procurement. Exceptions to or deviations from debriefing policy and procedures will be approved by the Director, Contracts Management Division.

(ii) A debriefing is intended to:

(a) Tell an unsuccessful offeror which areas of his proposal were judged to be weak and deficient and whether the weaknesses or deficiencies were factors in his not having been selected;

(b) Identify the factors which were the basis for selection of the successful contractor. If the quality of his proposal to satisfy the mission requirement was the basis, the unsuccessful offeror should be so informed, and given a general comparison of significant areas but not a point-by-point comparison of all the elements consid

ered in the evaluation criteria. If the successful offeror was selected on the basis of cost, the unsuccessful offeror should be told that such is the case. If selection was based on other factors, they should be specified.

(iii) If an unsuccessful offeror feels that his exclusion from the award was not justified, he will rely, at least in part, on the information given him in the debriefing to determine whether he should seek recourse against that exclusion. Accordingly, it is essential that a debriefing be conducted in a scrupulously fair, objective, and impartial manner, and that the information given the unsuccessful offeror be absolutely factual and consistent with the findings of the Contracting Officer and the basis on which he made his decision.

(iv) A debriefing should not reveal: (a) Confidential business information, trade secrets, techniques, or processes of the other offerors; and

(b) The relative merits or technical standing of the unsuccessful offerors.

(3) Procedures. (i) Once a procurement action has been initiated, through the evaluation process, and even after the selection of a contractor, all contractor queries as to the relative merits of the submitted proposal shall be courteously but firmly directed to the appropriate procurement official. All other personnel will avoid exchange of comments with all offer

ors.

(ii) Promptly after making awards in any procurement in excess of $10,000, the Contracting Officer shall give written notice to the unsuccessful offerors that their proposals were not accepted. The notice should name the successful contractor and state the amount of the award. It is also permissible to give the number of proposals received, but not the prices quoted by other unsuccessful offerors. Upon request, unsuccessful offerors shall be furnished the reasons why their proposals were not accepted, in accordance with paragraph (a)(2) of this paragraph.

(iii) Any EPA employee who receives from an unsuccessful offeror a request, written or oral, for a debriefing shall immediately refer the request to the Director of the Contracting Oper

ations. This official or his designee shall be present at all debriefings, and shall review written debriefings prior to release.

(iv) In some cases it may be necessary to arrange informal debriefings to contractor personnel by EPA evaluation participants. This determination will be made by, and meeting arrangements will be the responsibility of, the Director of the Contracting Operations.

(v) It is most important that all EPA personnel engaged in the evaluation and selection process be aware of the foregoing policies and procedures. Detailed and complete records will be maintained by key technical and business participants in a manner which will facilitate either a written or oral debriefing of any unsuccessful offeror's proposal.

(4) Report. When a debriefing is held, a brief report, summarizing the results of the debriefing, will be prepared and placed in the contract file. [37 FR 8450, Apr. 27, 1972]

Subpart 15-3.4-Types of Contracts

§ 15-3.405 Cost reimbursement type contracts.

[37 FR 15993, Aug. 9, 1972]

§ 15-3.405-3 Cost sharing contract.

This section prescribes the conditions under which cost sharing contracts are to be used. As defined in the Federal procurement regulations, a cost sharing contract is a cost-reimbursement type contract under which the contractor receives no fee but is reimbursed only for an agreed portion of its allowable costs. However, the principles set forth in this section are considered to apply equally to fixedprice contracts where the contractor agrees, or is required by statute, to bear a portion of the cost of perform

ance.

[46 FR 63272, Dec. 31, 1981]

§ 15-3.405-3-50 Basic guidelines.

Cost sharing with non-Federal organizations shall be encouraged where the parties have considerable mutual

interest in the basic or applied research subject matter of the contract. This mutual interest can occur, for example, when it is probable that the contractor will receive significant future benefits from the research such as increased technical knowledge useful in future operations, additional technical or scientific expertise or training for its personnel, opportunity to benefit through patent rights, and the use of background knowledge in future production contracts.

[46 FR 63272, Dec. 31, 1981]

§ 15-3.405-3-51 Unsolicited proposals.

The Department of Housing and Urban Development-Independent Agencies Appropriation Act contains a requirement that none of the funds provided in the Act may be used for payment through grants or contracts to recipients that do not share in the cost of conducting research resulting from proposals that are not specifically solicited by the Government. Accordingly, contracts which result from unsolicited proposals shall provide for the contractor to bear a portion of the cost of performance. However, where there is no measurable gain to the performing organization, there is no mutuality of interest, and therefore, no means by which the extent of cost sharing may reflect a mutuality of interest.

[46 FR 63272, Dec. 31, 1981]

§ 15-3.408 Letter contract.

(a) Limitations. (1) A letter contract may be entered into in accordance with § 1-3.408 only after approval by the:

(i) Director, Contracts Management Division, PM-214, in accordance with § 15-1.5403-2(b), when the face value of the complete contract and any individual modification thereto is expected to exceed $250,000.00, and

(ii) Chief officer responsible for procurement at the contracting activity when the face value of the complete contract and any individual modification thereto is not expected to exceed $250,000.00.

(2) A letter contract negotiated on a noncompetitive basis shall be justified as prescribed in EPA Order 1900.

(3) A letter contract shall be superseded by a definitive contract within ninety (90) days from the date the letter contract is accepted, unless a period of performance in excess of ninety (90) days is authorized by the chief officer responsible for procurement at the contracting activity. The letter contract shall specify the date by which the definitive contract is to be negotiated. In the event the Government and the contractor, after exhausting all reasonable efforts, cannot negotiate a definitive contract within ninety (90) days from the date of acceptance, the contracting officer with the approval of the head of the procuring activity shall issue a final decision as to a reasonable price or estimated cost and fixed fee for the letter contract work. The decision is subject to appeal under the disputes clause of the contract. The contracting officer shall issue the decision within ninety (90) days from the date of acceptance of the letter contract, unless the ninety (90) day period is extended by the chief officer responsible for procurement at the procuring activity.

(4) Ordinarily, letter contracts should not authorize payment to the contractor in excess of 50 percent of the estimated total of the anticipated definitive contract. The maximum monetary liability of the Government under the letter contract shall be stated in the contract schedule and shall not exceed 50 percent of the estimated total price or cost and fee of the definitive contract, unless a larger amount is authorized by the chief officer responsible for procurement at the contracting activity.

(5) A letter contract shall not describe, refer to, or otherwise commit the Government to a definitive contract in excess of funds available for obligation or commitment at the time the letter contract is executed. Also, the letter contract shall state, in appropriate situations (e.g., where award is based on price competition), the maximum price or cost and fee which may be negotiated for the definitive contract.

(6) A letter contract shall not be modified to:

(i) Extend the period of performance or to increase the dollar amount with

out the prior approval of the officials designated in § 15-3.408(c)(1), or

(ii) Accomplish new procurement, unless the new procurement is inseparable from the procurement covered by the existing letter contract. Such modifications are subject to the same limitations as new letter contracts.

(b) Contents. A letter contract and the resulting definitive contract shall contain all applicable provisions required by law and regulation. The letter contract will be composed of a transmittal letter and signature page, administrative recitals, appropriate EPA General Provisions, special schedule articles, and other schedule articles peculiar to the procurement. A format for a letter contract is illustrated in § 15-16.553.

[39 FR 36343, Oct. 9, 1974, as amended at 42 FR 33737, July 1, 1977; 46 FR 31643, June 17, 1981]

(a) Written or oral quotations. Written solicitations of quotations shall be used: for all purchases estimated to exceed $5,000; for all purchases estimated to exceed $2,500, except where urgency requires use of oral solicitations; and for all purchases where the contracting officer believes that written solicitations might be helpful or more efficient, as might be the case, for example, where detailed specifications are to be used, or where the procurement of a large number of different items is involved. Oral solicitations may be used whenever written solicitations are not required. (Use of standing price quotations is considered equivalent to the use of written solicitations of quotations.)

(b) When competitive quotations must be obtained. Competitive quotations shall be obtained in all small purchase actions, except

(1) When the purchase is estimated not to exceed $250 and the price is reasonable; or

(2) When a justification for noncompetitive procurement has been approved by the contracting officer and any required approvals have been obtained.

(c) Limited number of quotations in under-$5,000 purchases. When a purchase being handled competitively is estimated not to exceed $5,000, only three competitive quotations need be obtained.

(d) Purchases under $250. Although purchases estimated not to exceed $250 need not be conducted competitively (if the price is reasonable), such purchases shall be distributed equitably among qualified suppliers. Such